Government & Contractor Employee Interaction

1. Government & Contractor Employee Interaction

2. OVERVIEW

3. FACTS, RULES, AND RISKS FACT: The government is reliant on support contractors – and for more than just administrative or technical support. FACT: For mission success, government employees must understand the government/contractor relationship. NOAA employees must understand the rules and recognize the risks. This presentation aims to mitigate the risks by providing government employees an understanding of the laws and rules in the government-contractor relationship. Government, including uniformed, civilian and contractor personnel, are “all on a team” providing the unique mission support to NOAA and this nation.

4. FACTS, RULES, AND RISKS • However, different standards and procedures apply to the various members of the team. • People employed by organizations under contract to NOAA are not Federal employees and are governed by the terms and conditions of their individual contracts. • Inappropriate gov’t/contractor relationships may cause: • Government employees to inadvertently commit the Government • Embarrassment to the Agency during a ratification • Legal implications, to include lawsuits • Impact to mission resulting from misused funds and wasted resources on ratifications or disciplinary action • NOAA employees must keep an “arms length” relationship with contractor employees. • The appearance of inappropriate behavior is the same as the behavior itself. Perception can be reality.

6. NON-PERSONAL SERVICES PERSONAL SERVICES A non-personal services contract is a contract under which the personnel providing the services are not subject to the supervision and control usually prevailing in relationships between the government and its employees. The company, not the individual, is hired to perform work. Federal employees have no authority to approve timesheets or changes in working hours, leave, travel, etc. for individual contract employees. Per FAR 37.104, personal services contracts are characterized by the employer-employee relationship created between the Government and the contractor's personnel. Obtaining personal services by contract, rather than by direct hire, circumvents the personnel laws and is subject to stringent limitations. • V

7. PERSONAL VS. NON-PERSONAL SERVICES What’s the difference? The difference between government employees and contractor personnel is control. Under a non-personal services contract, a contractor – not the government customer – directs its employees and dictates its employees’ compensation, benefits and rewards. “Control” is the means and manner of a worker’s performance, extent of supervision and direction, type of work and skills required, and compensation. The government hires a contractor for the work products, not for the individual contractor employee.

9. INHERENTLY GOVERNMENTAL FUNCTIONS • Only government officials can legally perform “inherently governmental functions”, which are defined as: • Functions that are so intimately related to public interest as to mandate performance by government employees, such as: • Direction/control of federal employees • Determination of budget policy, guidance and strategy • Resource allocation or program management duties • Approval of contractual documents or administering contracts • Obligating Congressional authorized funding

10. CONTRACTOR EMPLOYEES MAY NOT EXERCISE ANY OF THESE FUNCTIONS Supervise government personnel. Supervise employees of other contractors. Administer or supervise government procurement activities. Perform inherently governmental functions. Evaluate, discipline or reward government personnel.

11. WHO’S WHO IN THE WORKPLACE: CONTRACTOR ID Contractor identification is key to avoiding problems • Contractor personnel must wear obvious identification. Nearly all service contracts specifically require contractor personnel to wear conspicuous badges. If you don’t know, ASK! • Identify contractors in telephone conversations, meetings and all written correspondence, including e-mail. • Many contractor personnel are retired military/civil service employees. • Both government employees and contractors must realize their professional relationship has changed - especially when dealing with sensitive or “FOUO” information.

12. CONTRACTOR IDENTIFICATION • Unidentified contractors increase risk of: • Conversion to improper personal services contracts where contractor personnel are managed as though they are government employees • Risk of unauthorized work direction (mistaken for Gov’t employee) • Performance of inherently governmental functions by contractors, such as program management duties and other resource allocation and/or decision-making • Unauthorized advance release of procurement information, giving unfair advantage to one or more contractors • Disclosure of source selection information, such as source selection plans, evaluation factors, exact funding amounts, proposals, and proposal evaluations

13. RAMIFICATIONS THAT MAY BE TRIGGERED • Misuse of Appropriations (Anti-deficiency Act violations) • Trade Secrets Act Violations • Procurement Integrity Act Violations • Standards of Conduct Violations • Conflicts of Interest • Gift rules • Preferential treatment • Unauthorized commitments • Endorsements • Preserve and protect government property/resources

14. SPECIFIC SITUATIONS

15. PROTECTING SENSITIVE INFORMATION • Because contractor personnel have access to our offices, we must protect sensitive information. • Hallways, bathrooms, cafeterias, break rooms and even the “cube farm” are not secure areas for discussing sensitive information • Know who is in the room when discussing sensitive information (including meetings) • Before providing information to a contractor to develop visual aids, create a database, provide consultations, or even repair the hard drive on our computer, we must ensure that the contractor is authorized access to the information • The results of unauthorized disclosure include: • Causing a competitive advantage, risking protests and/or possible litigation • Violations of the Procurement Integrity Act [41 USC 423] and the Trade Secrets Act [18 USC 1905] leading to criminal prosecution

16. PROTECTING SENSITIVE INFORMATION • Examples of information that is not releasable: • Classified information • Planning, Programming, Budgeting and Execution (PPBE) information • Contractor proprietary information • Unsolicited proposal information • Internal agency communications • Source selection information, and • Information that would create an unfair competitive advantage

17. GUIDELINES FOR PROTECTING SENSITIVE INFORMATIONS When you are in a meetingin which advanced acquisition or sensitive information is to be discussed, ensure you know who the participants are. If in doubt, ask! Do not discuss sensitive information in areas that are not secure (e.g., bathrooms, hallways, cafeterias). Do not leave sensitive information where contractor personnel may observe it (i.e., your desk or work area). Proprietary information is releasable to a contractor only if protected by appropriate contract clauses and non-disclosure agreements. Do not place contractor personnel in a position of liability for property over which they have no contractual authority, accountability or control. Do not delegate responsibility for end-of-day security checks to contractor personnel (unless their contract specifically allows it). Consult your legal counsel if you have questions about releasing sensitive information. An attorney’s advice is confidential and privileged.

18. OTHER SITUATIONS • Inclement Weather Dismissals: • Government does not determine contractor leave policy • Government generally does not compensate contractor for non-performance • Contracting Officer will refer to the contract terms and conditions that address government down time • Combined Federal Campaign: • Cannot solicit contractor employees directly or indirectly • May accept voluntary contributions of checks made to CFC • Birthday clubs and gift exchanges • Cannot solicit • No cash or investments • Gift rules apply • Use of Agency Seal • Contractors may NOT use Agency Name, Seal or any “colorable imitation of such words, initials in seals” in connection with merchandise, retail products, impersonation, solicitation, or commercial activity if reasonably calculated to convey impression that such use is approved, endorsed, or authorized.

19. CONTRACTOR TRAVEL IN GOVERNMENT VEHICLES • Unless specified in the contract, contractor personnel are not allowed to use government vehicles • Exception (FAR 45.102 & 45.304) only if: • number of vehicles required is predictable and constant • proposed contract will bear entire cost of vehicle program • vehicles will be used only on specific contract approved • prospective contractors do not or would not be expected to have existing and continuing capability to provide vehicles from their own resources • substantial savings are expected • Contractor may use shuttle bus between installations • Contractor may be a passenger in GOV -- if no appearance of favoritism • Government may issue letter that contractor is performing government business IAW Federal Travel Regulations.

20. CONTRACTOR ORGANIZATIONAL CONFLICT OF INTEREST • Cannot award a contract to a contractor that: • May be unable to render impartial assistance/advice • Has potential future gain or past involvement in a program, such as: • Drafting Statements of Work • Evaluation of competitor’s offers • Access to Government info not available to others (source selection info) • Access to competitor info obtained performing a Gov't contract (proprietary data) • Any other access that creates a competitive advantage • Bottom Line: We must prevent the existence of conflicting roles that may bias a contractor’s judgment

21. SAMPLE SITUATIONS

22. SCENARIO #1 SITUATION: Bill is a retired GS-12. He now is a contractor employee working for ACME Engineering Services in support of an NMFS Habitat Conservation project. The project team includes 30 NOAA personnel and 10 support contractors. Each quarter the team has an afternoon off-site or picnic to build team unity and morale. QUESTION: As a member of the project team, can Bill attend the picnic? ANSWER:

23. SCENARIO #1 NO, BILL CANNOT NORMALLY ATTEND THE PICNIC. It is up to Bill’s employer, ACME Engineering, to decide whether Bill can have the afternoon off to attend the picnic. Government officials are not authorized to grant “administrative leave” or expend government resources to compensate contractor personnel to attend government-sanctioned morale building activities (e.g., picnics, holiday parties) Bottom Line: The morale of the contractor employees is the responsibility of the contractor.

24. SCENARIO #2 SITUATION: Margaret works for ACME Telecommunications and serves as a technical advisor on an Advisory and Assistance (A&AS) contract in support of the Northwest Fisheries Science Center. Margaret also was an NCAA Volleyball player at UMASS. The NOAA Sports Day is in two weeks and NFSC could really use Margaret on their co-ed volleyball team. QUESTION: Could Margaret play for the NFSC Volleyball squad at Sports Day? ANSWER:

25. SCENARIO #2 NO. LIKE BILL, MARGARET CANNOT NORMALLY PARTICIPATE IN MORALE BUILDING ACTIVITIES. Margaret's employer, ACME Engineering, not the government, may decide whether she can participate.

26. SCENARIO #3 SITUATION: Dr. X of Consulting and Engineering Services offers to provide free consulting services to support the requirements development of a project for the NMFS Office of Science and Technology. The company VP offers to provide two weeks consulting services from his “top people” to support the Project Manager. QUESTION: Can the Project Manager accept the service? ANSWER:

27. SCENARIO #3 NO. Accepting a free service constitutes a violation of the law against accepting voluntary services (31 USC 1342) except under limited authority (10 USC 1588) When Dr. X. offers free consulting services, the question arises whether he is expecting to influence NOAA decisions in return for the "free" consulting services.

28. SCENARIO #4 SITUATION: Mary works for ABC Administrative Support Services, Inc. She has been doing an outstanding job in her position with ABC. As the government employee she supports, you want to recognize her for her above-and-beyond performance. QUESTION: Can you give her a “Star Achiever Acrylic Award”? ANSWER:

29. SCENARIO #4 • NO. YOU CANNOT GIVE MARY A “Star Achiever Acrylic Award” • Federal policy is not to recognizeor endorse private citizens or private entities that have a commercial or profit-making relationship with the Agency, unless the contribution is substantially beyond that specified in the contract. • It’s the contractor’s duty to incentivize its employees and to increase morale and productivity. Any awards for good performance must be tied to the contract, approved by the government program manager and Contracting Officer, and sent to the contractor, not the contractor employee. • Providing rewards or recognition of performance may be counter to the overall performance of the contract – other areas may be less than stellar.

31. DO’S Remember: Contractor personnel are not government employees – different rules apply. Ensure contractor personnel wear distinctive badges and can be easily identified - including E-mail correspondence and on the telephone. Respectthe employer-employee relationship between contractors and their employees. Protect intellectual property rights when contractor work products are created or shared in the federal workplace. Identify possible conflicts by contractor personnel to include violations of the law (including but not limited to Procurement Integrity statutes and regulations). Be sensitive to inappropriate appearances created by close relationships between government employees and contractor personnel. As necessary, seek assistance from legal counsel in resolving these inappropriate relationships.

32. DO’S • Safeguard sensitive information, including proprietary, Privacy Act and source selection information. • Clearly describe all contract taskings and ensure they are in-scope. • Maintain contact with on-site contractor personnel to assess performance and ascertain progress or delivery status. But take care to ensure that only the contractor’s task leader assigns taskings to individual contractor personnel. • “Zoom out” - Look at your situation from the contractor and contractor employee perspective: • Are you putting the employee in a difficult situation by asking for performance above or outside the contract? • Does your interaction with contractor personnel give the perception of favoritism? • Be aware of foreign disclosure limitations, including when working with international partners.

33. DON’TS • Don't become involved in the operations and policies of the contractor such as: • Selecting, recruiting, hiring or firing contractor personnel • Directing, scheduling, or critiquing individual contractor tasks on a continuous basis • Supervising contractor personnel • Pressuring the contractor to use “favorite” personnel or insisting on particular personnel actions • Don't use government and contractor personnel interchangeably. • Don't require “out of scope” work, personal services, or “inherently governmental functions.” - There are no “and other duties as assigned”. • Don't give the incumbent contractor unfair competitive advantage by including its personnel in meetings to discuss aspects of the recompetition, or by allowing access to planning information.

34. DON’TS Don't solicit or accept gifts from contractor personnel (other than coffee, small food items, etc. IAW Ethics Regulations). Do not encourage contractor personnel to leave their workplace to attend a morale building activity, ask them to volunteer to organize morale building events, or participate in office gift-giving, funds, etc. Do not give only one contractor AUTHORIZED/LEGALLY RELEASABLE information that may be of commercial value. If you share it with one, you must share it with all.

35. CONCLUSION Being familiar with the information in this briefing will help you to maintain appropriate relationships with contractor employees. If you find yourself in a situation that is not addressed or you have any doubt as to how to handle a contracting situation, contact the DOC Office of General Counsel or your AGO servicing contracting office, respectively, and ask for clarification.

36. REFERENCES • Department of Commerce (DOC) Procurement Memorandum (PM) 2015-05, Maintaining Proper Relationships with Support Services Contractors • DOC Office of Human Resources Management Performance Management Handbook • NOAA Administrative Order 202-451, NOAA Incentive Awards Program • NOAA Incentive Awards Program Handbook , Section 7, Non-Monetary Awards • NOAA Acquisition Alert 17-03 Proper Roles of the Services Contractor

37. For additional questions contact protech.services@noaa.gov For POC information visit http://www.protechservices.noaa.gov/contacts.php